JIM MATTOX 

Attorney General 

Supreme Court BuildIn 

P. 0. Box 12548 

Austin. TX. 7S7! l- 2548 

512l4752501 

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Telecopier 5W475-0268 

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Dallas. TX. 75202-4506 

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“ouston. TX. 77002-3111 

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Lubbock. TX. 79401.3479 

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McAllen, TX. 7850%16R5 

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San Antonio. TX. 782052787 

51212254191 

An Equal OpportUnW 

Aftirmative Action Efvl~v~ 

The Attorney General of Texas 

. 

November 29. 1984 

Ronorable Bill IKey 

Chairman 

Public Education Ctmmittee 

Texas House of RelBresentatives 

Opinion No. JM-235 

Re: Effect of section 23.024 (h) 

of the Education Code on school 

P. 0. Box 2910 trustee’s term of office 

Austin, Texas 711769 

Dear Representative Haley: 

You ask vhet’wr a school district trustee, elected to a six-year 

term in April, 19KI. is subject to having his term cut short by school 

boaFd action pursuant to section 23.024 of the Education Code. This 

statute, enacted :Ln 1983, allows certain school districts to establish 

single-member districts for electing 70% or more of their trustees. 

Acts 1983, 68th Leg., ch. 316, Sl at 1687. Subsection (h) of section 

23.024 provides: 

At the first election at which some or all of the 

trustee:s are elected from trustee districts and 

after c!s.ch redistricting, all positions on the 

board s:lall be filled. The trustees then elected 

shall d:&v lots for staggered terms as provided by 

Section 23.13. 23.14, or 23.15 of this code, as 

applical):le. (Emphasis added). 

Sections 23.13. 23.14. and 23.15 of the code provide that trustees in 

various classific,lt:ions of school districts shall have staggered terms 

of three years, six yiars, and four years respectively. For example, 

in a school dist:::lct ~where trustees hold six-year terms, in any one 

election year some trustees will be up for reelection, some will have 

two years remaining of their six-year terms, and some will have four 

years remaining t> serve. In the first regular election under section 

23.13, 23.14, or 23.15, all trustee positions sre filled, and the 

trustees draw lots for term8 of varioug length, thereby establishing 

the staggered terns. See Educ. Code 1123.13(c), 23.14(c), 23.15(c). 

- 

It is suggested that the single-member districts might be phased 

in over several Iwars as the trustees complete their six-year terms. 

Section 23.024 01: the Education Code, however. does not authorize a 

gradual changeovw. At the first election, “all positions on the 

board shall be filled,” and the trustees are to draw lots for terms of 

p. 1055 
Honorable Bill Haley - Page Z! (n!-235) 

varying length. The changeover occurs at once, and unequal terms are 

necessary to reestablish the scheme whereby only a portion of trustee 

positions are on the bsll,H in each election year. Moreover. the 

statute uses mandatory lmguage In directing that all positions 

“shall” be filled. This Flrovision effectively ends the terms of 

incumbent trustees who, for example, were elected to six-year terms 

and would otherwise have tw3 or four years to serve. 

You ask whether a trustee elected to a six-year term prior to the 

effective date of article 23.024 of the Education Code may be deprived 

of his full term by board action under that provision. The 

legislature in enacting s-. m=I*tlon 23.024 has clearly authorized the 

school board to take this action. See State v. Stanfield, 18 S.W. 577 

(Tex. 1892). Article VII, section 16 of the Texas Constitution 

empowers the legislature ‘to fix any term of office for school 

trustees, not to exceed :3:1x years. See Attorney General Opinion 

o-1995 (1940). Section 23.024(h) fixes terms WI thin these 

constitutional limits. Cf. Attorney General Opinion MU-536 (1982) 

(Tex. Const. art. V, I6-Fixes six-year term for court of appeals 

judges). 

The legislature may enact a statute shortening an incumbent 

officer’s term. as long as the constitution does not fix the term of 

office. Popham i. Patiersvn, 51 S.W.2d 680 (Tex. 1932). In Tarrant 

County v. Ashmore, 635 S.Wrrd 417 (Tex. 1982) cert. denied, 459 U.S. 

1038 (1982). the Texas Supclzme Court considered”thepurported rights 

of duly e&ted officehol&rs to complete their full terms of office.” 

635 S.W.Zd at 418. The Tzirrant County Comissioners Court adopted a 

redistricting plan and concurrently ordered that all justice and 

constable precincts and eclch office located therein be abolished so 

that the newly defined of:i:tces could be filled by appointment. The 

justices and constables who were removed from office sought damages 

and other relief against the commissioners court, claiming an entitlement to complete their t(!Ims of office and violation of their due 

process rights. 

The supreme court found that there was no taking of property in 

violation of article I, section 17 of the Texas Constitution or the 

due process clause of the Fifth and Fourteenth Amendments of the 

United States Constitution. It quoted from State ex rel. Maxwell v. 

Crumbau h. 63 S.W. 925, 9:!i (Tex. Civ. App. - San Antonio 1901, writ 

Tiim+ 

A public offi,ce is not ‘property,’ within the 

meaning of the ~:~~nstitutional provision that ‘no 

person shall bt! deprived of life, liberty or 

property without due process of law.’ It is a 

mere public agency. revocable according to the 

will and appoint,nlent of the people, .as exercised 

p. 1056 
Honorable Bill Hsl.ey - Psge :3 (JM-235) 

in the constitut~lon and the laws enacted in 

conformity therawl~th. Moore v. Strickling (U.Va.) 

146 

;he 

W.Va. 5151. _ . ,33 S.E. 274. In 

case cited the - 

50 L.R.A. 279. 

court in its opinion 

makes . . . the following quotation: ‘It is 

impossible to cclt.ceive how, under our form of 

government, a person can own or have a title to a 

governmental office. Offices are created for the 

administration of public affairs. When a person 

is inducted into an office he thereby becomes 

empowered to exerc:ise its powers and perform its 

duties, not for 111.8, but for the public, benefit. 

It would be a mi,3nomer and a perversion of terms 

to say that an i,ccumbent owned an office or had 

any title to it.’ 

The Texas Supreme Court determined that 

every public offj,ceholder remains in his position 

at the sufferance and for the benefit of the 

public, subject to removal from office by edict of 

the ballot box at the time of the next election, 

or before that tj.me by any other constitutionally 

permissible means. 

635 S.W.Zd at 421. Its de::Lsion is in accord vith the majority rule 

in other jurisdictions, ac shown by its survey of authorities from 

other states. An officer may have a property interest in his office 

that can be protected agsjnst interference by s private person, but 

“the qualified interest htld by a public officer is not ‘property’ 

within the sense of constitutional guarantees against governmental 

taking of property without compensation.” Id. at 422. See also 

Aigginbotham v. Baton Rougjr, 306 U.S. 535 (19m; Taylor v. Beckham, 

178 U.S. 548 (1900); Moore v. 

-- El Paso Commissioners Court, 567 S.W.2d 

15 (Tex. Civ. App. - El Paso 1978, writ ref’d n.r.e.); Attorney 

General Opinion H-955 (19;‘i). Cf. Childress County v. Sac&e, 310 

S.W.2d 414. (Tex. Civ. App. - Amarillo, writ ref’d n.r.e.), per curiam. 

312 S.W.2d 380 (Tex. 1958) (county commissioner’s office not vacated 

by change of precinct boundaries which removed his residence from his 

precinct). 

We conclude, based on Jarrant County v. Ashmore, that the terms 

of incumbent school board members may constitutionally be shortened 

pursuant to legislative ac eion. The trustees have no right to serve 

out full terms that would bar the legislature from enacting section 

23.024 and making it applicable to incumbents. The board’s action 

pursuant to this sectjon did not unlawfully deprive a previously 

elected trustee from serving out a full term. 

p. 1057 
Monorable Bill Haley - Page ,4 (a-235) 

SUMMARY 

Section 23.024 of the Education Code authorizes 

certain school. districts to establish 

single-member d:lstricts for trustees. Under 

subsection 23.026(h) of the code, all trustees’ 

positions will bir filled by election at the same 

time, with the result that the terns of some 

incumbent tNst ees will be shortened. The 

shortening of incumbent trustees' terms pursuant 

to section 23.024(h) of the Education Code does 

not deprive the trustees of a property right or 

any entitlement t,c serve out a full term. 

Very ruly yours s 

-J I M 

k k - 

MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney Goneral 

DAVID R. RICRARDS 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committelr 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Hoellinger 

Jennifer Riggs 

p. 1058